United States v. Andrew Lee Wells
431 F.2d 432
December 21, 1970 · Docket 19737
Headnotes
Generated summaries- Headnote 1
The government introduced a witness’s testimony that Wells said he had planned the robbery while in prison. The trial court admitted the remark, and Wells objected, arguing it was impermissible character evidence because he did not testify and his bad character was never contested.
- Headnote 2
The government also offered evidence of Wells’s alleged participation in a similar bank robbery to show his intent and a common scheme. The court found no error in admitting that evidence, relying on Neal and Kowalchuk as authority for the exception.
- Headnote 3
After objecting to the penitentiary statement, the trial court instructed the jury to “completely disregard” the remark. The opinion reiterates the general rule that a clear instruction can cure the error unless the evidence is extraordinarily inflammatory.
- Headnote 4
The appellate court noted prior decisions where statements about a defendant’s recent release from prison were so inflammatory that jurors could not be instructed to disregard them, resulting in remand for a new trial.
- Headnote 5
The court concluded that, even if the instruction was ineffective, the error was harmless because the remaining evidence of guilt was overwhelming. It cited controlling precedent on the harmless‑error standard.
- Headnote 6
The appellate panel found that the district court’s prompt instruction and denial of a new trial were proper exercises of its discretion, given the circumstances and the record.
- Headnote 7
The appellant argued that the penitentiary statement was prejudicial because his bad character was never at issue and he did not testify. The statement was offered by an accomplice and was not tied to any purpose other than showing the defendant’s propensity to commit the robbery.
- Headnote 8
The government introduced evidence of the appellant’s alleged participation in a similar Cleveland bank robbery to show his intent to commit the charged robbery and to demonstrate a common scheme between the two crimes. The court found no error in admitting that evidence.
- Headnote 9
The district court instructed jurors to “completely disregard” the penitentiary statement, using language such as “put it out of your mind” and “do not permit it to influence your judgment.” The appellate court noted the general rule that such instructions cure error unless the evidence is exceptionally prejudicial.
- Headnote 10
The court observed that, despite the error, the remaining evidence of guilt was overwhelming. Citing precedent, it concluded that any possible prejudice was harmless because the prosecution’s case would have sustained a conviction without the inadmissible statement.
- Headnote 11
The appellate court found that the trial judge’s immediate, unambiguous instruction to disregard the objectionable statement was a proper exercise of discretion, and therefore no reversible error occurred.
Opinion
Appellant was convicted of aiding and abetting the commission of armed bank robbery of a bank in North Bloomfield, Ohio, on January 5, 1968, in violation of Title 18, Sections 2 and 2118(a).
At trial, the government used the testimony of appellant’s three accomplices who participated in the actual robbery of the bank to implicate him. The accomplices testified that appellant planned and later shared in the proceeds from the robbery. Appellant was not present during the course of the commission of the crime since he entered a Cleveland hospital that day and presented business records to establish this fact.
The government also offered evidence of appellant’s alleged participation in a like and similar bank robbery in Cleveland, Ohio, that occurred a short time after the North Bloomfield robbery as tending to show his intent to commit the crime charged, and to show a common scheme or system of operation between the two bank robberies. We find no error in the admission of this similar act in evidence. United States v. Neal, 344 F.2d 254 (6th Cir. 1965); Kowalchuk v. United States, 176 F.2d 873 (6th Cir. 1949).
During the government’s direct examination of one of the accomplices, appellant objected to and requested a mistrial for the following objectionable statement (italicized) made by the witness:
“Q.“Q. When did you first have a discussion concerning a bank in North Bloomfield with Mr. Wells?
“A.“A. It was say around the fourth trip out there. He brought up the subject and also pointed this bank out to me.
“Q.“Q. You mean you were driving by it?
“A.“A. Yes.
“Q.“Q. Do you remember what he said when he pointed it out to you?
“A.“A. He planned to rob it.
“Q.“Q. Did he say anything else?
“A.“A. And he had planned this in the penitentiary.
“Mr. Marek: Objection, your Honor. Ask the jury to disregard that "■ and ask for a mistrial.”
The District Court sustained the objection and went on to instruct the jury as follows:
“[Y]ou are to completely disregard this statement made by the witness. Completely disregard it. Put it out of your mind. Do not permit it to influence your judgment in this case in the slightest.”
Appellant’s contention on appeal is that this statement concerning his commitment in the penitentiary was prejudicial and denied him a fair trial since his bad character was never in issue and he did not testify. The government contends that the District Court’s prompt instruction to the jury cured the error, and if it did not, the error was harmless.
It is the general rule that the subsequent striking of erroneously admitted evidence accompanied by a clear and positive instruction to the jury to disregard it cures the error, but if the evidence is of such an exceptionally prejudicial character that its withdrawal from the consideration of the jury cannot remove the harmful effect caused by its admission, a new trial will be granted. United States v. Farber, 336 F.2d 586, 589 (6th Cir. 1964). Similarly, in United States v. Smith, 403 F.2d 74 (6th Cir. 1968) we held that under the circumstance there present including the fact that the evidence of guilt was largely circumstantial, the Court’s admonition to disregard testimony to the effect that the defendant “just got out of the penitentiary” could not eradicate the prejudice from the minds of the jurors, and the case was remanded for retrial. In two recent cases (United States v. Nemeth, 430 F.2d 704 (6th Cir. 1970); United States v. Poston, 430 F.2d 706 (6th Cir. 1970)) we vacated judgments of conviction and remanded where we concluded an admonition to have been ineffective under the circumstances and that the absence of admonition required reversal respectively.
However, it has been repeatedly and emphatically stated that no hard and fast rule can be established in this area and that each case must be decided on the basis of the particular situation presented. See Brown v. United States, 380 F.2d 477, 479 (10th Cir. 1967), cert. denied, 390 U.S. 962, 88 S.Ct. 1062, 19 L.Ed.2d 1158 (1968); Sumrall v. United States, 360 F.2d 311, 313 (10th Cir. 1966). The accused statement in the present case, which although not unresponsive to the question was apparently a volunteer statement, was immediately followed by a clear and concise instruction by the trial judge twice admonishing the jurors to “completely disregard” it. We conclude that in the circumstances disclosed by the record the determination to deny the motion for a retrial and to admonish the jury in the language employed was a proper exercise of discretion by the District Court. We are further of the view, however, that in the light of the entire record in this case if an abuse of discretion occurred, the error was harmless since the evidence of guilt was overwhelming. See Brown v. United States, supra; United States v. Phillips, 375 F.2d 75 (7th Cir.), cert. denied, 389 U.S. 834, 88 S.Ct. 40, 19 L.Ed.2d 95 (1967); Evenson v. United States, 316 F.2d 94 (8th Cir. 1963).
Affirmed.